R v H and Another

JurisdictionUK Non-devolved
Judgment Date05 February 2004
Neutral Citation[2004] UKHL 3
Date05 February 2004
CourtHouse of Lords
(Appellant) (2003)

(On Appeal from the Court of Appeal (Criminal Division))


On Appeal from the Court of Appeal (Criminal Division)) (Conjoined Appeals)

[2004] UKHL 3



The Committee (Lord Bingham of Cornhill, Lord Woolf, Lord Hope of Craighead, Lord Walker of Gestingthorpe and Lord Carswell) have met and considered the causes Regina v. H (Appellant) (2003) (On Appeal from the Court of Appeal (Criminal Division)) and Regina v. C (Appellant) (On Appeal from the Court of Appeal (Criminal Divsion)) (Conjoined Appeals). We have heard counsel on behalf of each appellant and on behalf of the Crown as respondent.


This is the considered opinion of the Committee.


On 16 October 2003 the Court of Appeal (Criminal Division) gave judgment on interlocutory appeals by C and by the Crown: [2003] EWCA Crim 2847, [2003] 1 WLR 3006. The court certified that two points of law of general public importance were involved in its decision, namely

"1. Are the procedures for dealing with claims for public interest immunity made on behalf of the prosecution in criminal proceedings compliant with article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms?

2. If not, in what way are the procedures deficient and how might the deficiency be remedied?"

The court signalled its recognition of the importance and topicality of these questions by, unusually, granting leave to appeal to the House.


Both appellants have been charged, with others, with conspiracy to supply a class A drug, namely heroin, contrary to section 1 of the Criminal Law Act 1977. The street value of the heroin in question was said to be some £1.8 million. The appellant H is alleged to be a wholesaler of heroin. C is alleged to be an associate of H and to have been involved in the distribution of heroin. Another defendant (who has pleaded guilty to the indictment, and who is not involved in the appeals) is said to have stored and delivered heroin on behalf of H. When interviewed under caution, both H and C denied that they had committed any offence.


The prosecution case was based on observations which, so far as relevant, began on 3 January 2003 and culminated in the arrest of H and C and others on 21 February. It is alleged that on that date a package, later found to contain 2 kilos of heroin, was taken to H's timber-yard, put by H into a white van with a quantity of timber and taken to C's business premises, where C appeared to inspect it.


Both H and C served defence statements as required by section 5(5) of the Criminal Procedure and Investigations Act 1996. H denied that he had any knowledge that controlled drugs were in the van on 21 February. He gave no one permission to place the drugs inside the van. No package was passed to him. The police officer who stated otherwise was lying. He operated a legitimate timber business, a quantity of timber ordered by C was taken to him on 21 February, and that was the sole purpose of his dealings with C on that day. He could not account for traces of heroin on cash found on his person and at the house of his partner; the cash might have been innocently contaminated or there might have been deliberate interference. H's defence statement concluded with a far-reaching request for disclosure of documents by the prosecution. In his defence statement C denied that he had conspired to supply heroin or any class A drug. He knew nothing of any heroin in the van on 21 February. He had ordered a supply of timber, which was delivered on that day. He had no dealings with H, formerly his business partner, save in relation to their former business and the supply of timber. He also made a far-reaching request for disclosure, including disclosure of all material relating to any covert human intelligence sources involved in the investigation "to assist the preparation of his Defence and to establish the legality of the operation".


A formal preliminary hearing was held before His Honour Judge Murphy QC, who was not the judge to whom the case was first assigned, on 11 and 12 September 2003. There was then a lengthy argument on disclosure and the withholding of documents from disclosure by the prosecution on the grounds of public interest immunity. On behalf of H, counsel indicated that his client wished to mount a challenge to the legality and propriety of the police operation, and the integrity of the police surveillance evidence. He indicated that his client's case would involve allegations of the planting of evidence, and the falsification of observations. He indicated that it was his client's intention to make an application to stay the prosecution as an abuse of process on the grounds of serious executive misconduct and/or illegality on the part of the investigating officer and/or to seek the exclusion of evidence on the same grounds under section 78 of the Police and Criminal Evidence Act 1984. He sought disclosure inter alia of the original police observation logs, as well as applications and authorisations under the Regulation of Investigatory Powers Act 2000, and supporting material. On behalf of C, counsel sought disclosure inter alia of the same material in order "to assist the preparation of his Defence and to establish the legality of the operation". Counsel indicated to the judge that the material was sought in order to "found an application for section 78 exclusion of the observation evidence" a nd to support an application to dismiss the charge pursuant to section 52(6) of the Crime and Disorder Act 1998.


It was argued for C that any assessment of sensitive information held by the prosecution should be conducted in open court in the presence of the defendants and their counsel. The judge rejected this contention, as did the Court of Appeal on C's appeal, and it has not been pursued.


In argument before the judge, both H and C relied strongly on the very recent judgment of the European Court of Human Rights in ( Edwards and Lewis v United Kingdom 22 July, 2003, unreported, Appn nos 39647/98 and 40461/98). It was urged that since the judge might be called upon to stay or dismiss the case, or to exclude evidence under section 78 of the 1984 Act, Edwards and Lewis required him to appoint special counsel to safeguard the interests of the defendants and test the contentions of the prosecution at any public interest immunity hearing held in the absence of the defendants and their legal representatives. The judge ruled:

"42.I have just said, I do not feel able to ignore or to circumvent the decision in Edwards. That its consequences are inconvenient or novel or unusual are no grounds for concluding that the present case does not fall within its ambit. I have already ruled that Edwards does not have the consequence in this case of making the examination of sensitive material a matter for an open court investigation.

43. What the decision in Edwards and Lewis does tell me, however, is that if there is not an independent Counsel appointed, so as to introduce an adversarial element into the public interest immunity enquiry, there is a risk that the trial will be perceived to be unfair, and therefore to be a violation of Article 6.1 of the Convention. I am not prepared to contemplate that."

The judge added that he had received two lever arch files from the prosecution on the day before the preliminary hearing began, but as he was still very new to the case and needed to familiarise himself with the basic facts, he had given the documents "only a very perfunctory perusal".


The prosecution's appeal against the judge's order succeeded. The court accepted that in some situations a trial judge can and should invite the Attorney General to appoint special counsel from an approved panel to take part in the proceedings (paragraph 33(v) of the judgment of the court delivered by Rose LJ). But it held that the judge's appointment of special counsel was premature (paragraph 34):

"He had not looked in detail at the material, nor considered it in the light of the issues in the case or submissions by the prosecution about it. Had that stage been reached, he might have concluded, for example, that disclosure must be made. He was obliged to take account of the Edwards and Lewis case. But he was not bound by it in the way in which he would be bound by a decision of this court. In any event, there is nothing in the Edwards and Lewis case which required the appointment of independent counsel at that stage".

The appellants contend that the decision of the judge was correct, and seek to reinstate it.

A fair trial


As the House declared in R v Horseferry Road Magistrates' Court, Ex p Bennett [1994] 1 AC 42, 68, and recently repeated in Attorney General's Reference (No 2 of 2001) [2003] UKHL 68, [2004] 2 WLR 1, para 13, it is "axiomatic" "that a person charged with having committed a criminal offence should receive a fair trial and that, if he cannot be tried fairly for that offence, he should not be tried for it at all". Article 6 of the European Convention requires that the trial process, viewed as a whole, must be fair. Any answer given to the questions raised by these appeals must be governed by that cardinal and overriding requirement.


Fairness is a constantly evolving concept. Hawkins J (Memoirs, chapter IV) recalled a defendant convicted of theft at the Old Bailey in the 1840s after a trial which lasted 2 minutes 53 seconds, including a terse jury direction: "Gentlemen, I suppose you have no doubt? I have none". Until 1898 a defendant could not generally testify on his own behalf. Such practices could not bear scrutiny today. But it is important to...

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